Just before getting out of bed this morning, I saw a falling star through the skylight, which motivated me to get up and out, where Orion was preparing to set behind a clear-topped Waialeale.
It was dark, very dark, giving the appearance of being much earlier than it was, and as my neighbor Andy and I walked along the road, with four dogs between us, the eastern sky brightened, some clouds over Lihue turned peachy and it was evident it would be another glorious day.
The beauty of the past few days made it hard to want to spend Tuesday morning at a planning commission meeting, where the room was so cold that one staff member donned a fur-trimmed parka.
But I went because a petition to revisit the approval given for Joe Brescia’s house atop burials at Naue was on the agenda, and since I’ve been following this story for quite a long time, I figured no sense stop now, even though it's been rather heart-wrenching process.
Attorneys from all sides were there to argue their case. At one table sat Harold Bronstein, Camille Kalama and Alan Murakami. At another sat Walton Hong and Cal Chipchase. In the middle sat deputy attorney Mauna Kea Trask and planning director Ian Costa, who had recommended that the commission reject the petition.
The line up of players alone spoke volumes.
I won’t go into all the details here, even though they’re interesting, because I'm pressed for time and they’re all written up in my story in The Hawaii Independent. And if you’re interested in the issue, or plan to comment here, I hope you will read it, as it gives more background and context.
But the gist of it was that Mauna Kea was telling the commissioners all the reasons why they shouldn’t do anything, although one in particular was repeated often:
“He [Brescia] will sue you. It will amount to a taking and there will be considerable damages involved, and that’s a matter of fact.”.
He also offered a reason that might have been made up: they were bound by Judge Kathleen Watanabe’s court order, and couldn't go against it. He insisted they were, even though Harold, Alan and Camille said they were not, because the county had never been a party to the suit that Native Hawaiian Legal Corp. filed against Nancy McMahon and the State Historic Preservation Division, and so couldn't be held to an order resulting from it.
But the commissioners never asked their own attorney to clarify, most likely because they wanted a way out, and Mauna Kea was giving it to them, with his reassurances that they had done their duty and any fault in the matter had been the state’s and not theirs and if they took no action it would be appealed to the higher courts, anyway, and that, he said, is as it should be, because that’s where the case belonged, since the role of the Burial Council and the extent of its powers needed to be clarified legally.
And besides, he kept saying in various forms and fashions, to do otherwise would be messy and expensive:
“The house is up,” Trask said. “It’s painted green with white trim. The windows are in. If you’re gonna revoke this permit you gotta be prepared to buy that house for however many millions that will take because it will be a taking. Let the courts decide this.”
When it came time to deliberate, commissioners didn’t go into their usual executive session, but shared a few awkward moments of silence, followed by minimal comments. I was interested in what Chairman Jimmy Nishida had to say, and finally he spoke:
”I don’t think anybody likes the idea of this house being built there,” he said, and my heart leapt.
But then he kept talking, telling the commissioners:
“You’ve gotta vote your conscience, but get all these issues of private property. Sometimes you sit on a commission and you make decisions you just don’t want to do.”
And my heart fell, because I knew then how he was going to vote, and that I wouldn’t like that expression of his conscience.
Only Commissioner Herman Texeira said no, he wouldn’t go along with the planning director’s recommendation:
“It seems the developer knew what the situation was. He went into this with his eyes wide open and then seemed to deliberately circumvent what was on the land.”
Then it was over, with the usual stunned, sad silence that always seems to follow any action, or more accurately, inaction, in this particular long-running matter, until one person in the audience broke it by calling out, “Shame!”
“You didn’t really think they’d do anything, did you?” asked an incredulous friend, who is also a veteran commission watcher, when I called to report the results.
Well, yes, I confessed, I did. Hope springs eternal.
Because surely, there's gotta be a way out of this. As Jimmy said, nobody really wants that house there atop all those burials. It's costing Brescia a fortune in legal fees, and what's the likelihood, anyway, that he'll be able to sell it?
So why, I keep wondering, does it keep going? Why does everyone keep passing on the issue, instead of risking the lawsuit, buying the house, taking a stand? How did it turn into this seemingly unstoppable runaway train, with people -- even those in positions of power -- joking about how the waves will one day take it out if someone doesn't burn it down first?
Jimmy said he wasn’t sure the Burial Council was really equipped to handle something like Honokahua — the massive burial disruption on Maui that prompted the burial treatment laws — and he thought it was likely that a similar situation existed up there at Naue, with burials crisscrossed through all the dunes that are now being filled up with houses.
Maybe they are equipped, and maybe they aren’t. But surely they aren’t if the other bodies that are supposed to work with and support the Burial Council, like the planning commission, keep cutting them off at the knees.
Who knows. Maybe this case will end up going all the way to the state Supreme Court, as Mauna Kea suggested, and the question of the Burial Council's authority will finally be resolved.
Who knows. Perhaps by that time Mauna Kea will have had his fill of the county and he'll be arguing the case himself -- on the Burial Council's side.
Hope springs eternal.